Friday, June 18, 2010

This story was reported in the Boston Globe Editorial Page today and I am reprinting it here because I see too many of these cases and under the present law, there is not much that can be done.

Case of Harvard student shows urgency of immigration reform

June 18, 2010

WHAT COUNTRY wouldn’t want to be home to someone like Eric Balderas? Balderas was the valedictorian of his high school class and now attends Harvard on a full scholarship. He’s studying molecular and cellular biology and hopes to become a cancer researcher.

Despite those achievements and aspirations, the 19-year old Harvard sophomore could be kicked out of the United States and deported to Mexico. His mother entered this country illegally when Balderas was 4, and he grew up in San Antonio. On June 7, he was detained at a Texas airport by US immigration authorities when he tried to board a flight to Boston. He had lost his Mexican passport and was attempting to use a consular card from the Mexican government and his Harvard identification card.

The next day, he was able to fly back to Boston. But he now has a July 6 court date with an immigration judge. Harvard President Drew Gilpin Faust is asking members of the Massachusetts congressional delegation for help.

His plight is another illustration of the urgent need for a reasoned national dialogue on the subject of immigration, with the end goal being comprehensive reform. As attitudes toward illegal immigration harden, more young people like Balderas risk detainment and deportation. But the logic that approach breaks down in Balderas’s case. Coming to the United States wasn’t his choice, and the nation has vastly more to gain by letting him stay.

A year ago, Faust urged Congress to support the Dream Act, the federal legislation that would allow young people who are illegal immigrants to apply for legal residency, under certain conditions. The Dream Act — once backed by a bipartisan dream team that included Massachusetts Senator Edward M. Kennedy and Arizona Senator John McCain — would create a path to legal residency for young people who come to America before they turn 16 and have lived here for five years.

Kennedy is no longer around to fight for the cause, and McCain has abandoned it. But the country loses if some of the world’s best and brightest are stopped from calling America their home.

Tuesday, June 15, 2010

The Supreme Court blocked the government Monday from routinely deporting legal immigrants for minor drug possession convictions, a decision that immigrant-rights lawyers said will spare tens of thousands of otherwise law-abiding residents from being sent out of this country.

In a 9-0 decision, the justices said a Texas man who had pled guilty at different times to having a marijuana cigarette and a single Xanax pill, an anti-anxiety drug, had been wrongfully deported.

Jose Carachuri-Rosendo was taken into federal custody after he pled no contest to having the Xanax pill without a prescription. Both an immigration judge and the U.S. court of appeals in New Orleans ruled he must be deported because his second drug possession conviction qualified as an "aggravated felony."

His case illustrated the potentially harsh impact of a 1996 federal law that was intended to rid the nation of immigrants who were criminals and violent offenders. Previously immigrants could ask for leniency if they had a job, a family or other ties in this country.

The new law, by contrast, required the deportation of any non-citizen convicted of an "aggravated felony."

But Congress did not carefully define this term. Since then, immigration judges have been deciding which crimes fit the definition.

Monday's ruling marks the third time in six years that the Supreme Court has intervened and ruled that these judges have gone too far.

Justice John Paul Stevens said the government's view defies common sense. "We do not usually think of a 10-day sentence for the unauthorized possession of a trivial amount of a prescription drug as an 'aggravated felony'," he wrote.

Because of its strict wording, the 1996 law had required deportation even for legal residents who have lived in the United States for decades and served in the U.S. military. And despite the high court's ruling, immigrants convicted of drug charges still could be deported.

They will, however, have a chance to seek leniency before an immigration judge.

"Today's ruling will affect tens of thousands of immigrants, but it is hard to get a specific number," said Benita Jain, co-director of the Immigrant Defense Project in New York.

In 2009, the Immigration and Customs Enforcement (ICE) deported 139,188 so-called "criminal aliens," but this number included both lawful residents and illegal immigrants, officials said.

The U.S. appeals court in New Orleans and Chicago were among those that said a second drug possession conviction triggered the automatic-deportation rule. Had the Supreme Court agreed with that view, it would have allowed the government to move forward with thousands of deportations, immigration experts said.

Peter Spiro, a Temple University Law Professor and former clerk at the high court, said the justices acted after waiting in vain for Congress to fix the 1996 law.

"This is another in a long line of cases in which the Court is pushing back," he said. "They are giving very clear cues they want this law defined more narrowly."

Six years ago, the court rejected the Bush administration's view that a drunk driving conviction amounted to an aggravated felony. Four years ago, the court in an 8-1 decision rejected deportation for a South Dakota man who pled guilty to cocaine possession -- a felony under state law, but a misdemeanor under federal law.

In its decision, the high court said a second drug possession conviction was not an aggravated felony even if it was a repeat offense. Stevens said the common-sense use of the words "aggravated" and "felony" refer to a serious or violent crime that would be punished by more than a year in prison.

"Congress, like 'Humpty Dumpty', has the power to give words unorthodox meanings," he said, but there is no evidence that Congress meant to make minor drug offenses into aggravated felonies. He noted that drug trafficking does qualify as a felony requiring deportation.

Carachuri-Rosendo, 32, was born in Mexico and came to Texas with his parents when he was five. He became a lawful permanent resident, worked as a carpet installer, and has a wife and four children.

He served 20 days in jail for a misdemeanor marijuana charge. He spent 10 days in county jail for the Xanax pill before he was taken into federal custody and deported to Mexico.

Tuesday, June 8, 2010

Recently had a custody case where an LPR (Lawful Permanent Resident) was in removal for CIMT's and a Narcotics Conviction. The narcotics conviction left her under mandatory detention, pending her removal hearing.

We filed both a 42A and a 42B application for cancellation of removal. The 42B application was under the "Special Rule" cancellation for an abused spouse. A recent BIA decision held that an LPR is eligible for 42B relief as the language written by Congress is ambiguous as to who qualifies. What is nice about 42B is that any conviction that is the result of the spousal abuse is waived.

Needless to say, we prevailed and our client was released the same day after the DHS attorney waived appeal.